Coffee and a Case Note

On 17 April 2019 Corrs Chambers Westgarth hosted the annual NSW Young Lawyers great debate between solicitors and barristers.

I spoke second for the solicitors team; after the excellent Sarah Dickins and before the amazing Thomas Spohr.

I'm delighted to say that we won! Perhaps more delightful, though, was the even itself. Playful, but conducted in the right spirit. I hope you agree!

Sure, corporate oppression is fun but what about reasonable notice for board meetings?!  

A director (or *former* director) applied for immediate interlocutory relief.  The relevant Co found mining tenements and on-sold them. Its strength was its speed: [9]. Perhaps naturally, the board often met on short notice: [21]  

In August 2018 the directors declared our applicant was no longer a director, having been absent from board meetings for the previous 6 months.   The proceedings were, in essence, the applicant seeking to reverse that declaration.  

Our applicant was not the easiest to contact. He lived in China and did not speak English. He was only contactable by way of his translator and may not have had an email address. He was absent from the 6 meetings preceding the August 2018 “declaration meeting”.  

The applicant said the directors failed to give him reasonable notice of those six months of meetings, meaning the August 2018 declaration was oppressive: [56]  At [81] to [111] the Court worked through the correspondence relating to each meeting. 

Having done so, the Court found our applicant did not establish an absence of reasonable notice: [112]  The application failed. Costs followed the event.  Now, who said board meeting litigation was boring?

I hope you take some value from this one hour (or so) CLE where I sketch out the Australian privacy regime as it currently stands including a consideration of notifiable data breaches.

This talk covers four areas:

1. What is the legislative privacy framework?

2. How does privacy work in practice? Both "macro" statistics and "micro" examples.

3. How do you avoid a data breach?

4. What do you do if a data breach occurs?

I hope there's some value here for anyone advising APP entities.

“Get it in writing!”   

Relying on a conversation to vary a contract has its challenges, especially after you’ve gone down at first instance.  Party A provided services to Party B – a company – pursuant to a contract. Party C guaranteed Party B’s contractual obligations.  

Party B failed to pay the fees owed pursuant to the contract. Party A sued for the fees and won. But by the time of that victory, Party B had gone into liquidation. This left Party C and another guarantor “on the hook” for the judgment debt.  

Party C appealed, saying the judge erred in her finding of what was said in a meeting, and the effect of it. Party C argued that a conversation had changed the contract despite the “entire agreement” clause.  To get up, Party C would need to show that the findings made by the judge were “glaringly improbable”: [44].  He failed.  

On Appeal the Court found that the first instance judge was “entirely correct”: [47]. Party C’s suggestion of what happened was “inherently implausible” ([48]).  Perhaps clearly, the Appeal Court was not satisfied that the finding of the first instance judge were “glaringly improbable”: [51] and [69].  Victory for Party A then. 

And, pursuant to a clause in the (unamended) contract, legal costs on the more generous solicitor/client basis.

So, when is your loan agreement void for uncertainty?  When are a contract's terms so vague that the Court can't find any real agreement between the parties?  The NSW Supreme Court  considered a loan agreement obliging the borrower to pay interest "at such times, for such periods and at such rate or rates as shall be determined by the lender from time to time": [6].  Generally, when confronted with a knotty term, Courts the Court will try to preserve the contract if possible: [9].  The term above put the "times" and "periods" when interest was to be paid - as well as the rate itself - completely in the control of the lender.  Seemingly: there's no interest unless the lender says so!  Despite this obscurity, the Court found (bearing in mind the agreement related to unsecured loans in a family trust context) the term was sufficiently certain to be enforceable: [14].  In coming to that conclusion the Court - in my respectful view, wisely - noted the likelihood that parties to a contract of this sort might "sit down with (their) accountant" to work out the interest payments on the basis of reasonableness.  We find, perhaps as always: accountants to the rescue!

Hope you get some value from this episode!

“Mr X, in the company of a young female acquaintance, lost control when driving the vehicle for purposes unrelated to his possession of the vehicle.”: [4].  

Has a saucier sentence even been written?  

Anyway, here a car owner gave possession of his 2006 F430 Spider Ferrari (which is a type of car, I’m told)* to a company for the company to rent it out. 

The owner said he did so because a person, the representor, said the company had insurance. It did not.  Car detailer, Mr X, came into the possession of the car and… see the quote above. The car was written off.   

The owner sued the company and the representor, and won. The judgment was “several”, to be paid separately by the company and the representor.   The company then went into liquidation.  The representor appealed. The car owner also appealed re the “several” judgment, saying it should have been “joint and several” meaning he could pursue the representor for the entire judgment noting the company was in liquidation.

Leave to appeal and pursue the company was granted to both because, at [17]: the dispute was genuine, about not insignificant amounts, and – due to dispute being a challenge to an earlier judgment – litigation was preferable to a proof of debt.

* - who cares about cars?